The grounds upon which the DHS may apply to the Children's Court for protection orders, as set out in section 162 of the CYFA, are as follows:
- the young person has been abandoned and, after reasonable enquiries, the parents cannot be found and there is no other suitable person who is willing to care for the young person;
- the young person's parents are dead or incapacitated and there is no other suitable person willing and able to care for the young person;
- the young person has suffered, or is likely to suffer, significant harm as a result of physical injury and their parents have not protected, or are unlikely to protect, them from harm of that type;
- the young person has suffered, or is likely to suffer, significant harm as a result of sexual abuse and their parents have not protected, or are unlikely to protect, them from harm of that type;
- the young person has suffered, or is likely to suffer, emotional or psychological harm of such a kind that their emotional or intellectual development is, or is likely to be, significantly damaged and their parents have not protected, or are unlikely to protect, them from harm of that type; and
- the young person's physical development or health has been, or is likely to be, significantly harmed and their parents have not provided, arranged or allowed the provision of, or are unlikely to provide, arrange or allow the provision of, basic care or effective medical, surgical or other remedial care.
It should be noted that paragraphs (c) to (f) provide for significant harm as a criterion. In practical terms, this has resulted in fewer adolescent runaways being brought to court on protection applications. Section 162(2) provides that harm may be constituted by a single act or omission or by the accumulation of a series of acts or omissions.
The Supreme Court, in the case of Director-General of CSV v B (unreported, 11 December 1992) considered the grounds for a protection application. That case related to an allegation of significant damage to emotional or intellectual development. The Judge stated that it was not necessary for the damage to be lasting or permanent in nature. The damage needed to be "important or of consequence" to the child's emotional or intellectual development.
Section 183 of the CYFA allows anyone who reasonably believes that a young person is in need of protection to report the circumstances to the DHS or to the police. This report will not be held to be a breach of professional ethics or a departure from accepted standards of professional conduct if it is made in good faith; nor will a person reporting in good faith be liable to any action for damages or other legal proceedings for having done so.
The report is only admissible in evidence in proceedings before a court or tribunal with the consent in writing of the reporter or with the leave of the court or tribunal. The person or agency to whom the report is made must not disclose the name of the person making the report to anyone else without the written permission of the reporter.
If there has been a protective intervention report of suspected abuse, the DHS must investigate the subject matter of the report (s.205). The protective intervener (i.e. the DHS worker) must inform the young person and parents that information given may be used in a protection application.
If the protective intervener is satisfied on reasonable grounds that a young person is in need of protection, they must record that information in the Children at Risk Register. An appeal can be made to the Victorian Civil and Administrative Tribunal (VCAT) against a decision to record a case in the Register (s.333(b)).
Recently, it has been the practice of DHS protective interveners to avoid court proceedings by pressuring parents to enter voluntary agreements. Such agreements can be very intrusive, even extending to placement of children away from parental care for protracted periods. Very often, better outcomes would be obtained for families if the Children's Court dealt with the matter. For this reason, any parent considering entering a voluntary agreement with the DHS should obtain advice from a VLA lawyer or other lawyer experienced in dealing with Children's Court matters (see: Chapters 2*3 Legal Aid and 2*4 Advice Directory for contact details).
The predecessor of the CYFA introduced mandatory reporting of child abuse for a number of professionals (including doctors, nurses, psychologists, teachers, child care workers, social welfare and youth workers, police officers, probation and parole officers), who are or will be required to report to the DHS cases of child physical or sexual abuse that they become aware of in the course of their employment. Further classes of people may be added to the list by regulation.
A report must be made as soon as possible after each time the person has formed a belief on reasonable grounds that a young person is in need of protection. Failure of a designated person to report such abuse will constitute a summary offence, punishable by a fine of up to $1,000 (s.184).
The implementation of mandatory reporting is being phased in over an extended period. The DHS will be able to provide up-to-date information regarding the designation of particular professions. At the time of writing (30 June 2011), doctors, nurses, police officers, registered psychologists, and teachers are required to report physical and sexual abuse (s.182).
The CYFA contains new provisions (ss.228–239) that allow the DHS to make application for an order to enable it to investigate whether a child is in need of protection. An application can be made without notice with the leave of the court. An order can last for up to ten days if obtained without notice and for up to 21 days if with notice. It may authorise the interview of parents or children and medical examination of a child. A report must be provided to the court setting out the results of the procedure. In practice these provisions have not been utilised by DHS.
Only the DHS initiates protection applications. A protection application may be commenced either by apprehension or by notice.
The protective intervener may, with or without a warrant, take the young person into safe custody. If so, the young person must be taken to a Children's Court as soon as practicable and at any rate within one working day. If the apprehension takes place on a weekend or public holiday, the young person must be brought before a bail justice as soon as possible, but in any event no later than 24 hours after the apprehension (s.242 CYFA).
If a protection application proceeds by way of notice (usually in non-urgent cases), the notice should be posted to the parents or young person within 14 days of the hearing or delivered within five days of the hearing (s.243).
It is advisable that a young person mature enough to give instructions to a lawyer (usually seven years of age or above) seek legal advice as soon as possible. The young person should obtain separate representation from that of the parents. If it is impossible to obtain legal advice before the hearing date, help should be sought at court from VLA's duty lawyer (see: "Duty lawyer services" in Chapter 2*3 Legal Aid, and also Chapter 2*4 Advice Directory).
A protection application may be found proven on the first hearing date. This would be most unusual in cases commenced by apprehension. Such cases are usually adjourned without proof so that the applicant can complete the assessment of the young person's circumstances or the parents and/or the young person can seek further advice and prepare their case. The parents and/or the young person may contest the protection application. If so, the matter will need to be booked in by the Court Co-ordinator for a contested hearing. The Magistrate must decide the case on the balance of probabilities. In hearing the case, the court is not bound by the rules of evidence.
In order to prevent lengthy delays in the hearing of protection applications, there is a dispute resolution procedure for contested cases. Depending on which DHS region is involved, the procedure will be either a New Model Conference or a Dispute Resolution Conference. An independent convenor conducts the conference, attended by the DHS, the young person's parents, and possibly also the young person, relatives, a member of the family's ethnic community and legal representatives. The intention is to reach an agreed settlement that ensures the safety and well-being of the young person. Any settlement has to be ratified by the Children's Court.
The CYFA provides for three types of reports in the Family Division:
- protection reports;
- disposition reports; and
- additional reports (ss.553–562 CYFA).
Protection and disposition reports are prepared by the DHS. The Magistrate may request additional reports from the DHS, the Children's Court Clinic or another specified person.
A protection report, which would be provided before the grounds of the protection application are proved, must only deal with matters relevant to the question of whether the young person is in need of protection (s.555).
A subsequent disposition report will include, among other matters, a draft case plan, if necessary (s.558(a)).
If the report recommends that the young person be removed from home, it must detail the steps taken by the DHS to provide the services necessary to enable the young person to remain at home (s.558(c)). There are provisions regarding access by the young person and their parents to Family Division reports (ss.556 & 559). Access may be withheld from the young person or the parents if it is deemed prejudicial to the physical or mental health of the young person or their parents. A report cannot be withheld from a legal practitioner representing the young person or parents. There are strict time limits for the filing and delivering of reports; however, it is common for the time limits not to be complied with.
If a case is adjourned, either by a Bail Justice or a Magistrate, the young person is usually placed on an interim accommodation order. Such an order can take five forms:
- the release of the young person on their own undertaking;
- the release of the young person to a parent on the parent entering an undertaking;
- the placement of a young person with a suitable person (following a report from the DHS) on that person entering an undertaking;
- the placement of a young person in an out of home care service (e.g. a DHS short-term unit or placement with a foster care agency); or
- the placement of a young person in a secure welfare service (i.e. a lock-up facility). A young person cannot be placed in a secure welfare service only because there is no other adequate accommodation.
Unless a young person is released on their undertaking, or that of their parents (as in (1) or (2) above), an adjournment cannot exceed 21 days. The court has the power to extend an interim accommodation order to a suitable person or a community service (as in (3) and (4) above) for up to 21 days at a time, if satisfied that it is in the best interests of the young person.
In respect of a secure welfare service placement, the Court has power to extend the order for up to 21 days on one occasion if exceptional circumstances exist (s.267(2)(c) CYFA).
Conditions, including that of access, can be placed on an interim accommodation order. A young person's whereabouts may be withheld from a parent if special circumstances exist, or if the young person's safety or well-being is in jeopardy (s.265). An appeal may be made to the Supreme Court regarding the making or dismissal of an application for an interim accommodation order (s.268).
A Magistrate who finds a protection application proven can then make a protection order or an interim protection order.
There are seven types of protection orders under the CYFA, as follows:
- An undertaking: This may be for up to six months, or for 12 months in special circumstances. This is the least intrusive option and would not involve statutory supervision (s.278).
- A supervision order: This may be made for up to 12 months or, in special circumstances, two years. It is similar to a supervision order under the old Children's Court Act, except that the young person may no longer be ordered to reside as directed by the DHS. There are provisions for breach proceedings (ss.280–282) and for extension (s.293(1)(a)).
- An order of custody to a third party for up to 12 months: The third party cannot include the Secretary of DHS in an official capacity, or a person employed by a community service in an official capacity, or a parent. The Magistrate may impose conditions, but none that involve the DHS. There are provisions for an application to vary (ss.300–302) or revoke (ss.303–310) such an order.
- A supervised custody order: This is similar to an order of custody to a third party, but involves supervision by the DHS. In making this order, the Magistrate must have regard to the fact that the ultimate objective of the order is the reunification of the young person and family. There are provisions for application to vary (ss.300–302), extend (s.293(1)(b)) or revoke (ss.303–310) this order.
- An order of custody to the Secretary of DHS: This may be made for up to 12 months but can, on application to the court, be extended. The order grants sole custody of the young person to the Secretary of DHS but does not affect the guardianship of the young person. The Magistrate may attach conditions to the order, and applications may be made to revoke (ss.303–310), extend (s.293(1)(c)) or vary the order (ss.300–302).
- An order of guardianship to the Secretary of DHS: This may be made for a period not exceeding two years. This disposition is similar to a wardship order under the old Children's Court Act but is more limited. If the initial guardianship order exceeds 12 months, the Secretary of DHS must review it after 12 months. There are provisions for further extensions by the court in certain circumstances. Application may be made for the revocation of a guardianship order (s.305).
- A long-term guardianship to the Secretary of DHS order: The CYFA contains new provisions enabling the court to make an order in respect of a child aged 12 or over which may last until the child is 18. The order is only to be made where there is proposed continuity of carers for the duration of the order and where the child consents. Application may be made for revocation of a long-term guardianship order (s.306).
All the protection orders may continue in force after the young person turns 17, but cease to be in force when the young person turns 18.
The Magistrate may make an interim protection order for up to three months, pending the decision to make a final protection order (s.291). An interim protection order usually involves supervision by the DHS, who may take breach proceedings if the order is not complied with. The young person and the parent or caregiver have the power to apply for variation or revocation of the interim protection order.
In making a finding or a protection order, the Magistrate must make decisions in the best interests of the young person. Other considerations a Magistrate must take into account include:
- giving "protection and assistance to the family as the fundamental group unit of society";
- for Aboriginal children, the need to maintain cultural identity;
- the preservation of child-family relationships;
- minimum disruption to education and employment; and
- the child's wishes (but with the child's age, maturity and other relevant considerations affecting the weight to be given to those wishes).
Under the CYFA, an application may be made for a permanent care order (s.319 CYFA). This order can only be made if the young person's parent has not had the care of the young person for a period of at least six months, or for periods that total at least six months of the last year.
A permanent care order allows a person who is not the parent of the young person to have long-term custody and guardianship or joint guardianship of the young person. The order may last until the young person turns 18 or marries, whichever happens first. A permanent care application is made by the DHS in relation to approved care givers, but a permanent care order cannot be made in favour of the DHS.
Application may be made to vary or revoke the order, and a successful application (with the prior consent of the DHS) by the custodian for custody and guardianship under the Family Law Act 1975 (Cth) terminates the permanent care order.
Section 259 of the CYFA provides that any person having the care and control of a young person under 17 years of age may apply to the Children's Court for an order to be made if that person believes that there is a "substantial and presently irreconcilable difference between himself or herself and the young person to such an extent that the care and control of the young person are likely to be seriously disrupted".
The CYFA also allows the young person in this situation to make the application to the court. As a matter of practice, they would probably make such an application through a lawyer.
Before an irreconcilable difference application can be heard, conciliation counselling must take place, or be attempted (unless exceptional circumstances exist) and the DHS must provide a Certificate of Conciliation Counselling (s.260). A Magistrate who finds that there are irreconcilable differences between the parties will make a protection order (see: "The Magistrate's order", under "Protection applications", above). Irreconcilable difference applications are now very rare.
Under the CYFA, a young person, parent, protective intervener, the Secretary of DHS or the Attorney-General (if involved in the proceeding) may appeal to the County Court (s.328 CYFA), or to the Supreme Court if the decision has been made by the President of the Children's Court. An appeal on a point of law may be made to the Supreme Court on a final order of the Family Division of the Children's Court (s.329). However, if a person appeals on a question of law to the Supreme Court, that person cannot also appeal to the County Court (s.328(5)).
An appeal should be lodged within 28 days of the making of an order.
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WELFARE CASES :: Last updated: Thu Jul 1st 2010